ORDER APPROVING SETTLEMENT AGREEMENT AND MUTUAL RELEASE AMONG ENRON CORP. AND OTHER SETTLING PARTIES RELATING TO PROJECT INAUGURATION IN BRAZIL
ARTHUR GONZALEZ, Bankruptcy Judge
Upon consideration of the Motion of Enron Corp. pursuant to Bankruptcy Rule 9019 for approval of a Settlement Agreement and Mutual Release among Enron Corp., various affiliates of Enron Corp., Brazilian Power Development Trust, SFE — Sociedade Fluminense de Energia Ltda., WestLB, AG New York Branch, and related Lenders, dated August 22, 2003, and the Supplement thereto filed by Enron Corp. on September 19, 2003 (collectively, the "Motion"); and upon consideration of the Objection to the Motion filed on behalf of John Hancock Life Insurance Company and John Hancock Variable Life Insurance Company on September 2, 2003 (the "Objection"); and the Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. § 157 and 1334; and it appearing that due and proper notice of the Motion and of the relief requested herein having been given in accordance with this Court's Second Amended Case Management Order Establishing, Among Other Things, Noticing Electronic Procedures, Hearing Dates, Independent Website and Alternative Methods of Participation at Hearings, dated December 17, 2002, and that no other or further notice need be given; and the Objection having been resolved pursuant to a separate agreement (the "Hancock Agreement") by and among John Hancock Life Insurance Company, John Hancock Variable Life Insurance Company, Brazilian Power Development LLC (the "Hancock Parties"), and WestLB AG, New York Branch, in its capacity as administrative agent (in such capacity, the "Lender Agent") for and on behalf of the several banks and other financial institutions (the "Lenders") from time to time party to that certain Amended and Restated Credit Agreement dated as of December 20, 2000 (the "Credit Agreement"); and the relief requested in the Motion being in the best interests of Enron Corp. (the "Debtor" and collectively with its above captioned affiliated debtors and debtors in possession, "Debtors") and its estate and creditors; and the Court having reviewed the Motion; and the Court having determined that the legal and factual bases set forth in the Motion establish just cause for the relief granted herein and that the settlement submitted for the Court's approval in the Motion is fair and reasonable, and after due deliberation and sufficient cause appearing therefor, it is
ORDERED that the Motion is granted in all respects, and it is further
ORDERED that the Settlement Agreement and Mutual Release (the "Settlement Agreement") among the following Settlement Parties — Debtor, Brazilian Power Development Trust, the Lenders, the Lender Agent, Enron Brazil Turbines I Ltd., Enron Brazil Turbines II Ltd., Enron Brazil Power Holdings 20 Ltd., Enron Brazil Power Development 20 Ltd., Enron Brazil Power Investments 20 Ltd., SFE — Sociedade Fluminense de Energia Ltda., Enron South America Turbine LLC, Enron America do Sul Ltda., Enron Brazil Power Holdings XVIII Ltd., RJG — Rio de Janeiro Generation Ltda., Enron Comercializadora de Energia Ltda., and Enron Netherlands Holding B.V. (collectively, the "Settlement Parties") is authorized and approved pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure, and it is further
ORDERED that the Debtor and any other Enron Party are authorized to execute, deliver, implement and fully perform any and all obligations, instruments, documents and papers and to take any and all actions reasonably necessary to consummate the Settlement Agreement and perform any and all obligations contemplated therein, and it is further
ORDERED that the Settlement Agreement may be amended by the Settlement Parties in accordance with terms thereof without further order of the Court; provided, however, that, in connection therewith, the Settlement Parties shall obtain the prior written consent of the Official Committee of Unsecured Creditors of Enron Corp. et al. (the "Committee"), which consent shall not be unreasonably withheld; and, provided, further, that any such amendment shall neither be material in nature nor change the economic substance of the settlement approved hereby, and it is further
ORDERED that the Court shall retain exclusive jurisdiction to (i) enforce and implement the terms and provision of the Settlement Agreement, and (ii) resolve any disputes arising under or in connection with the Settlement Agreement and any related documents. Furthermore, the Court shall retain exclusive jurisdiction to interpret, implement, and enforce the provisions of this Order, and it is further
ORDERED that the Enron Guaranty, the Construction Agency Agreement and the other Operative Agreements described in Schedule 2.01 to the Settlement Agreement shall terminate pursuant to the terms of the Settlement Agreement, and it is further
ORDERED that the Termination Amount (as defined in the Construction Agency Agreement) shall be deemed reduced to zero (0) pursuant to the terms of the Settlement Agreement, and it is further
ORDERED that all distributions, assignments, and other actions provided for in the Settlement Agreement are authorized and shall be carried out in accordance therewith, and it is further
ORDERED that all Lender Parties, all Owner Trust Parties, all Enron Parties, and all Related Parties of any of the foregoing Parties (including, without limitation, (x) any non-debtor subsidiaries or affiliates of the Debtors, and (y) any creditors or other entities solely in the capacity they hold or may hold claims against, or interests in, the Debtors and hold or may hold direct or indirect Claims arising from or relating to Project Inauguration), together, in each case, with their respective successors and assigns, are hereby permanently enjoined from: (a) commencing, conducting or continuing in any manner, directly or indirectly, any suit, action or other proceeding of any kind (including, without limitation, any proceeding in a judicial, arbitral, administrative or other forum) on account of any Claims arising under or in connection with Project Inauguration or any of the Operative Agreements; (b) asserting any Claims against any of the Owner Trust Parties, or against any property or interests in property of the Owner Trust Parties, (c) enforcing, levying, attaching (including, without limitation, any pre-judgment attachment), collecting or otherwise recovering by any manner or means, whether directly or indirectly, any Claims arising under or in connection with Project Inauguration or any of the Operative Agreements against the Owner Trust Parties or against any property or interests in property of any Owner Trust Party; or (d) taking any actions in any place and in any manner whatsoever that do not conform to or comply with the provisions of the Settlement Agreement; provided, however, notwithstanding the foregoing clauses (a) through (d), (i) the Lender Parties shall, without any limitation contained in this ordering paragraph, retain all rights, remedies and interests under the Credit Agreement and any other Operative Agreement not terminating under the Settlement Agreement and this Order; (ii) such clauses shall not apply to the enforcement of the Settlement Agreement by the Parties; (iii) that, except with respect to the Owner Trust Parties, their property and the interests of the Lender Parties therein, nothing in this Order releases any entity or person from, or affects in any way, any liabilities arising out of or relating to Titles I and IV of the Employee Retirement Benefit Security Act, as amended; and (iv) such clauses shall not apply to (x) fraud or criminal misconduct of any Party, or (y) any matters, including without limitation Course of Conduct Claims, as and to the extent set forth in Section 3.07 of the Settlement Agreement, and it is further
ORDERED, that all contractual rights and Claims arising under or in connection with the Operative Agreements or Project Inauguration that the Hancock Parties may have against the Enron Parties, the Lender Parties and/or the Owner Trust Parties, and all contractual rights and Claims arising under or in connection with the Operative Agreements or Project Inauguration that the Enron Parties, the Lender Parties and/or the Owner Trust Parties may have against the Hancock Parties, are hereby terminated and extinguished, with the exception of, with respect to the parties to the Hancock Agreement, the rights and obligations of such parties under the Hancock Agreement, and it is further
ORDERED, that all noncontractual Claims of the Hancock Parties against each of the Lender Parties and the Owner Trust Parties with respect to Project Inauguration are hereby terminated and extinguished to the extent and only to the extent that any such Party enters into the release of the Hancock Parties as provided by Section 6(b) of the Hancock Agreement in the case of the Lender Agent or 6(c) of the Hancock Agreement in the case of any other such Party, and it is further
ORDERED, that all noncontractual Claims of the Hancock Parties against the Enron Parties with respect to Project Inauguration are hereby preserved, subject to the right of the Enron Parties to dispute such noncontractual Claims; it being expressly understood that the Enron Parties reserve their rights to challenge any Claims alleged or asserted by the Hancock Parties, including, without limitation, by way of asserting the Enron Parties' position that all of the Hancock Parties alleged Claims are derived from their position as the holders of the beneficial interest in the Owner Trust, and any such Claims were subsequently transferred to the Lender Parties upon the foreclosure of such beneficial interests by the Lender Parties, and it is further
ORDERED, that all noncontractual Claims of the Enron Parties against the Hancock Parties, including, without limitation, any Course of Conduct Claims, with respect to Project Inauguration or otherwise are hereby preserved, subject to the right of the Hancock Parties to dispute such noncontractual Claims, and it is further
ORDERED, that all proofs of claim filed by or on behalf of the Owner Trust Parties or the Lender Parties in the Case in connection with Project Inauguration, including Claim Nos. 10985 and 8965, shall be deemed withdrawn with prejudice and expunged from the claims docket, and it is further
ORDERED, that all proofs of claim filed by or on behalf of the Hancock Parties in the Case in connection with Project Inauguration, including Claim Nos. 10556 and 12941, shall be deemed withdrawn with prejudice to the extent, and only to the extent, that they assert a Claim based on contractual rights under the Operative Agreements or otherwise, and any noncontractual claims against the Enron Parties with respect to Project Inauguration shall be preserved, subject to the right of the Enron Parties to dispute such noncontractual claims and object to such proofs of claim, and it is further
ORDERED that based on the Hancock Agreement and the terms hereof, the objection that the Hancock Parties filed as to the Motion on September 2, 2003 shall be deemed withdrawn, with prejudice; and it is further
ORDERED that all objections to the Motion or the relief requested therein that have not been withdrawn, waived, or settled, and all reservations of rights included therein, are overruled on the merits. Those parties who did not object, or who withdrew their objections, to the Motion are deemed to have consented to the Motion, and it is further
ORDERED that the failure to specifically include any particular provisions of the Settlement Agreement in this Order shall not diminish or impair the effectiveness of such provisions, it being the intent of the Court that the Debtor's implementation of the transactions, distributions, releases, discharges and other actions contemplated in the Settlement Agreement be approved in its entirety, and it is further
ORDERED that except to the extent required to repay the DIP Obligations (if any) pursuant to and in accordance with the DIP Order and the Documents, all proceeds received by the Debtor or any other Enron Party in connection with the Settlement Agreement shall be retained by the Debtor or such other Enron Party, as applicable, and neither disbursed nor used until the earlier to occur of (i) agreement by and between the Debtor and the Committee with respect to the release of such proceeds and (ii) further order of this Court, and it is further
Capitalized terms used in this paragraph and not defined herein or in the Motion shall have the meanings ascribed to them in the Order Authorizing, Pursuant to 11 U.S.C. § 105, 361, 362, 364(c)(1), 364(c)(2), 364(c)(3) and 364(d)(1), Amendment of DIP Credit Agreement to Provide for Extension of Post-Petition Financing, dated May 8, 2003.
ORDERED, any proceeds received by Debtor, or any Debtor's affiliate, from the sale of the MHI Turbines shall be treated in all respects for purposes of Title IV of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1301-1461 (2000), as if such proceeds were a separate non-debtor member of Debtor's controlled group, as defined under 29 U.S.C. § 1301(a)(14) until any claim of the PBGC, if any, are satisfied or otherwise resolved upon the completion of a "standard termination" of the Enron Corp. Cash Balance Plan in accordance with the requirements under 29 U.S.C. § 1341(b) and 29 C.F.R. Part 4041, Subparts A and B, or upon an order of the Court that PBGC's claims are fully satisfied (each, a "Trigger Event"). As soon as reasonably practicable following occurrence of the Trigger Event, Debtor shall notify PBGC of the Trigger Event and that it has completed a standard termination of the Enron Corp. Cash Balance Plan. Furthermore, until the occurrence of the Trigger Event, any distribution of proceeds received by Debtor, or any affiliate of Debtor, including ESAT, shall not be used nor disbursed until further order of this Court, and it is further
ORDERED that the stay of this Order provided by the Bankruptcy Rules (including Bankruptcy Rule 6004) whether for ten (10) days or otherwise shall not be applicable to this Order, and this Order shall be effective and enforceable immediately upon entry.